29 Wisconsin judges sign recall petitions

Ethics rules don't expressly prohibit action

Mar. 17, 2012

Written by

Gannett Wisconsin Media Investigative Team

Wisconsin Code of Judicial Conduct

"No judge or candidate for judicial office or judge-elect may … participate in the affairs, caucuses, promotions, platforms, endorsements, conventions or activities of a political party or of a candidate for partisan office."Source: Chapter 60 of Wisconsin State Statutes

Dane County Judge David Flanagan drew scrutiny after issuing a temporary restraining order March 6 against a Walker-backed voter ID law without disclosing his support of the recall, but the analysis shows that judges in 15 other counties also signed petitions.

Walker supporters were outraged that Flanagan did not disclose his apparent conflict and filed ethics complaints against the judge. However, judges who signed the petition and agreed to interviews defended their decision as constitutionally protected and not explicitly banned by the Wisconsin Code of Judicial Conduct.

Twelve percent of the state's approximately 250 county-level judges signed the petition. By comparison, the 930,000 signatures submitted by recall organizers would represent 21 percent of the state's voting-age population, if all signatures were valid. The Government Accountability Board has so far determined 26,000 were invalid, and the review is ongoing.

The Gannett Wisconsin Media analysis — based on a digital database of recall signatures created by Wisconsin GrandSons of Liberty and We the People of the Republic — revealed judges from all corners of the state signed on in support of the recall. The data showed none of the state's 16 appeals court judges or seven Supreme Court justices signed.

None of the judges who signed are in Calumet, Outagamie, Waupaca or Winnebago counties, the core of The Post-Crescent's circulation area.

Milwaukee County, with one-fifth of the state's circuit court judges, had the most with 11. The county has 47 judges, meaning about a quarter of the judges signed the petition.

Janine Geske, a former Wisconsin Supreme Court Justice and law professor at Marquette University, said she was surprised by the number of judges who signed the recall petitions.

"I believe the judges had the right to sign the petition, but it creates a problem with the appearance of impartiality if and when they may be called upon to decide any issues involving the governor or the Republican party," Geske said in an email.

"We are in a highly politically charged time when many citizens have lost confidence in our governmental bodies. It is critical that judges do everything they can to demonstrate that the judiciary remains independent of the other two branches and will remain free of political influence."

Judge: Commission gave OK to sign

The state's Code of Judicial Conduct says judges cannot "participate in the affairs, caucuses, promotions, platforms, endorsements, conventions or activities of a political party, or of a candidate for partisan office."

The code, which is part of state statute, also bars judges from being a member of a political party, endorsing candidates or soliciting funds for political parties. It contains general admonitions to avoid "the appearance of impropriety in all of the judge's activities."

Jim Alexander, executive director of the Wisconsin Judicial Commission, which governs judicial conduct, said the code makes no specific reference to recall petitions. He said a "handful" of judges around the state contacted him for advice over the propriety of signing the recall.

Alexander declined to say what advice he gave judges, but Monroe County Judge J. David Rice said he was told signing the recall was OK.

"I did recognize there could be an issue about whether this was ethical, so I contacted (Alexander), told him what I was considering and asked his opinion," Rice said. "He said in his opinion that didn't violate the judicial ethics, so I relied on that in signing. … If he'd have said, 'No,' I wouldn't have done it."

Alexander said he did not sign the recall petition because "it's not something proper for my position."

Professor Richard Painter of the University of Minnesota Law School questioned why judges would expose themselves to criticism and a potential perception of bias by signing the recall petition, though he acknowledged there might be wiggle room within the judicial code allowing judges to sign.

"State judges often have to decide cases where the governor is a party to a case, less often where state legislators are a party to a case. Sometimes judges have to rule on close elections," said Painter, who served as chief ethics lawyer in President George W. Bush's administration and has written a book on ethics reform in American government. "For judges to be getting involved in the question of whether the governor ought to be recalled I think is highly inappropriate. Whether it violates an ethics rule or not in Wisconsin, I think it's very inappropriate."

Judges defend their decisions

The judges who signed the petition made two basic arguments — that signing the petition was merely supporting the electorate's right to vote, and that the recall petition supports neither a specific candidate nor a political party and is allowable.

"I concluded that by signing a recall petition I wasn't advocating for a particular party, I was advocating for the recall process, which I thought was completely separate and apart," said Brown County Judge Mark Warpinski. "I didn't do it lightly. I certainly considered this a very important issue, but in the final analysis I felt that my right to sign a petition didn't implicate any of the ethical considerations that I knew of."

Brown County Judge Don Zuidmulder called criticism of judges signing the petition "the beating of the partisan drum."

"I viewed this simply as a question of whether we should have an election," Zuidmulder said. "I'm in favor of elections any time, any place."

Cynthia Gray, director of the American Judicature Society for Judicial Ethics, said she found no court decision or advisory opinion that directly referenced recall petitions. The American Judicature Society is a clearinghouse for information on judicial ethics and discipline affiliated with Drake University in Des Moines, Iowa.

"The Wisconsin Code of Judicial Conduct does not appear to expressly prohibit signing a recall petition," Gray said in an email. "Generally, in a context with possible First Amendment implications, conduct that is not expressly prohibited is allowed."

The state Supreme Court issued an advisory opinion in 2001 saying judges are allowed to sign nominating petitions as long as the petition language only supports putting the candidate on the ballot and does not imply an endorsement.

"What I did by signing the recall petition is say that the people of Wisconsin should be allowed to vote again for governor," said Milwaukee County Judge Charles F. Kahn Jr. "I did not support any candidate and I did not support any political party. This is a substantial and important distinction. I know that under the rules of judicial conduct — which I take very seriously and follow totally and without question — under these rules I'm not allowed to support a particular candidate."

Kahn said it was "good to know" that dozens of other judges also signed the recall petition.

"I just do not see how as individuals, judges or other elected officials can be or should be prevented from making a public statement on important policy issues that affect our lives as citizens," Kahn said.

Door County Judge D. Todd Ehlers said he was "just exercising my rights as a citizen. I consider that being the same as my exercising my right to vote."

The other 24 judges who signed the recall petition also were contacted for comment but either declined or did not respond.

Walker, through spokesman Cullen Werwie, also declined comment, as did a spokesman for the Republican Party of Wisconsin.

Judges explain choice not to sign

Some judges who didn't sign the recall petition said they accept that their position has inherent limitations.

"When you sign up for this job, to some extent you compromise your ability to express your own political beliefs one way or the other," said Brown County Judge Marc Hammer. "Some judges don't think it's a political statement to sign a recall petition. I just really wasn't comfortable in doing so. I think if you're asked to judge the conduct of others, you need to be mindful of what your conduct is."

Sheboygan County Judge Angela Sutkiewicz agreed, despite a history of heavy political involvement before taking the bench in August 2010. She served as secretary of the Democratic Party of Wisconsin and a delegate at the 2008 Democratic National Convention, and even hosted a campaign event for then-Gov. Jim Doyle at her home in 2006.

Her husband and daughter signed the Walker recall, but Sutkiewicz did not.

"It's a nonpartisan office, so I'm nonpartisan. I'm just not active in partisan politics, and I think that's appropriate given my position," Sutkiewicz said. "It never occurred to me to sign it."

Adam Skaggs, senior counsel for Brennan Center for Justice at New York University School of Law, a nonpartisan public policy and law institute, said he doesn't think simply signing a recall petition is sanctionable conduct for a judge, but it's a gray area that is best avoided.

"I think when judges get involved in political activities, it can give rise to questions about whether those judges are indeed beginning to appear partial, so I think it can be cause for concern," Skaggs said.

"I think the situation in Wisconsin — being so highly partisan as it is and so politicized as it already is — is probably a situation where judges are best off exercising an abundance of caution and avoiding anything that could even be construed as pulling them into these highly partisan battles."

Judge investigation goes to commission

As for Flanagan — who issued his ruling in the voter ID case on March 6 — the decision whether his actions merit further examination lies with the judicial commission.

Alexander said the commission has received a "barrage" of complaints seeking an investigation of Flanagan. The commission is not scheduled to meet until the end of April, so barring a special meeting it will decide then whether to launch an investigation.

Flanagan did not respond to a written request for comment. He had been randomly selected by a computer to hear the voter ID case.

Kahn and Zuidmulder said they likely would have disclosed signing the recall before ruling on a matter involving Walker, but both stopped short of criticizing Flanagan's actions.

"I probably would have disclosed that I signed the recall petition," Zuidmulder said. "But I tell people if I work out at the gym with somebody, if somebody belongs to my church."

The Republican Party of Wisconsin, which is among the groups filing complaints, noted Walker was listed as a defendant in the voter ID case and said Flanagan "made his bias clear" by signing the recall.